CategoryPublic Policy

Lawmakers propose legislation to return ALJs to competitive service

A group of congressmen introduced the ALJ Competitive Service Restoration Act on May 1, which aims to restore administrative law judges (ALJs) to the competitive service.
 
President Donald Trump (R) moved ALJs from the competitive service to the excepted service—two subsets of the larger civil service—through Executive Order 13843 in July 2018. Trump issued the order in light of the United States Supreme Court’s June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order. The EO did not change ALJ’s civil service removal protections, according to the Office of Personnel Management (OPM).
 
Prior to the executive order, ALJs were subject to the competitive service’s merit-based selection process administered by the OPM. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
 
Opponents of Trump’s executive order have argued that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards. Proponents have argued that the executive order implemented changes required by the court decision in Lucia v. SEC.
 
U.S. Senators Maria Cantwell (D-Wash.) and Susan Collins (R-Maine) introduced similar legislation in August 2018, but the bill failed to advance before the end of the 115th Congress.
 
The group of congressmen who introduced the new legislation includes Elijah E. Cummings (D-Md.), Brian Fitzpatrick (R-Pa.), Richard Neal (D-Mass), Rodney Davis (R-Ill.), Gerry Connolly (D-Va.), Danny Davis (D-Ill.), Bobby Scott (D-Va.), John Larson (D-Conn.), and Tom Cole (R-Okla.).
 


President Trump seeks stricter asylum procedures in new memo

President Donald Trump issued a presidential memorandum directing the attorney general and the secretary of homeland security to propose regulations to, according to the President, “strengthen asylum procedures to safeguard our system against rampant abuse of our asylum process.”
 
The memo, issued on April 29, 2019, gives the Department of Justice and the Department of Homeland Security 90 days to propose regulations that would do the following:
  • Clarify which laws apply to asylum applicants in different circumstances
  • Ensure that all asylum applications, excluding appeals, receive final adjudication within 180 days
  • Set an application fee that does not exceed the costs of asylum adjudication
  • Set an application fee for initial employment authorization while the asylum claim is pending
  • Prevent people who have entered, or attempted to enter, the U.S. unlawfully from receiving employment authorization
  • Ensure immediate revocation of employment authorization for applicants denied asylum or under a final order of removal
The memo also directs the secretary of homeland security to prioritize adjudicating asylum claims and enforcing immigration laws when making staff assignments.
 
You can read more about adjudication and presidential memoranda here:
 
Additional reading:
 
Trump’s Memo:


Second federal judge blocks Trump administration restrictions on abortion access

U.S. District Judge Michael McShane issued a nationwide preliminary injunction to block a rule issued by the U.S. Department of Health and Human Services (HHS) aimed at keeping Title X fund recipients from engaging in abortion-related activities. McShane’s ruling follows a similar decision made by Judge Stanley Bastian in the Eastern District of Washington, who granted an injunction on April 25, 2019. Preliminary injunctions keep new rules from going into effect while courts decide how to resolve legal challenges brought against them. In this case, HHS issued a final rule prohibiting the use of Title X funds to perform, promote, or refer to abortion as a family planning method. The rule also requires clear financial and physical separation for clinics conducting Title X and non-Title X activities.
 
McShane’s order, issued on April 29, 2019, came down four days before the HHS rule was supposed to go into effect. He argued that the rule is “a solution in search of a problem” and that “[a]t worst, it is a ham-fisted approach to health policy that recklessly disregards the health outcomes of women, families, and communities.” He also held that the people challenging the rule raised serious claims that the rule was arbitrary and capricious. The arbitrary-or-capricious test comes from Administrative Procedure Act (APA), which requires courts reviewing agency decisions to rule against actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
 
Judge McShane said that a previous version of the HHS rule survived a challenge at the U.S. Supreme Court in the 1991 case Rust v. Sullivan. There, the court applied the Chevron doctrine and held that the HHS interpretation of Title X reflected a plausible reading of the law and must be upheld. Under the Chevron doctrine, federal courts defer to agency interpretations of ambiguous laws that Congress empowers the agency to implement.
 
However, McShane held that post-Rust actions by Congress and HHS changed the way courts should approach the issue. He ruled that “HHS must do more than merely dust off the 30-year old regulations and point to Rust.” He said, “That HHS appears to have failed to seriously consider persuasive evidence that the Final Rule would force providers to violate their ethical obligations suggests that the rule is arbitrary and capricious.”
 
You can read more about Chevron deference here:
 


April 2019 OIRA review count; highest monthly review count of Trump administration to-date

In April 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 44 significant regulatory actions issued by federal agencies—the highest monthly review count of the Trump administration to-date. The agency approved one rule without changes and approved the intent of 39 rules while recommending changes to their content. Agencies withdrew four rules from the review process.
 
OIRA reviewed 32 significant regulatory actions in April 2018—12 fewer rules than the 44 significant regulatory actions reviewed by the agency in April 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 47 significant regulatory actions each April.
 
OIRA has reviewed a total of 111 rules so far in 2019. The agency reviewed a total of 355 significant rules in 2018 and 237 significant rules in 2017.
 
As of May 1, 2019, OIRA’s website listed 101 regulatory actions under review.
 
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.
 


SCOTUS hears oral arguments in challenge to census citizenship question

The U.S. Supreme Court heard oral arguments on Tuesday in Department of Commerce v. New York, a case challenging the addition of a citizenship question on the U.S. Census. The question asks, “Is this person a citizen of the United States?”
 
Commerce Secretary Wilbur Ross approved the addition of a citizenship question on the 2020 U.S. Census in March. Four federal judges had blocked the question from appearing on 2020 census forms as of April 2019.
 
The court considered a constitutional argument against the question in addition to claims that the steps taken by the U.S. Department of Commerce to add the question violated administrative procedure under the Administrative Procedure Act (APA).
 
The constitutional argument alleges that the citizenship question is unconstitutional because it prevents the federal government from carrying out its duty under the U.S. Constitution’s Enumeration Clause to count every person living in the United States every 10 years, which could distort the proper apportionment of congressional representatives.
 
The administrative procedure challenge claims that, according to the administrative record, the process followed by the agency to add the citizenship question to the census was arbitrary and capricious in violation of the APA.
 
An analysis of the hearing by SCOTUSblog predicted a 5-4 decision to uphold the citizenship question with the justices divided along ideological lines. A ruling is expected in June.
 


Federal Register weekly update; lowest weekly final rule total since January

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of April 22 to April 26, the number of pages in the Federal Register increased by 1,330 pages, bringing the year-to-date total to 17,930 pages. This week’s Federal Register featured a total of 498 documents, including 411 notices, one presidential document, 41 proposed rules, and 45 final rules.
 
One final rule was deemed significant under E.O. 12866—meaning that it may have a large impact on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,112 pages. As of April 26, the 2019 total trailed the 2018 total by 796 pages.
 
The Trump administration has added an average of 1,055 pages to the Federal Register each week in 2019 as of April 26. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Federal judge blocks Trump administration restrictions on abortion access

U.S. District Judge Stanley Bastian issued a preliminary injunction to block a new Trump administration rule aimed at keeping Title X fund recipients from engaging in abortion-related activities. Preliminary injunctions keep a new rule from going into effect while a court decides how to resolve legal challenges brought against it. In this case, the U.S. Department of Health and Human Services (HHS) issued a final rule prohibiting the use of Title X funds to perform, promote, or refer for abortion as a family planning method. The rule also requires clear financial and physical separation for clinics conducting Title X and non-Title X activities.
 
Judge Bastian argued that his injunction was appropriate because the plaintiffs in the case presented facts and arguments supporting the claims that the rule would violate existing laws and regulations, was made in violation of the Administrative Procedure Act (APA), and would cause Title X fund recipients to suffer irreparable harm. Bastian also said that the state of Washington showed that it stood to lose over $28 million dollars in savings because “it is not legally or logistically feasible for Washington to continue accepting any Title X funding subject to the Final Rule.” He said one of the plaintiffs, the National Family Planning & Reproductive Health Association, represents over 65 Title X grant recipients and that many members of their network would leave once the final rule went into effect, “thereby leaving low-income individuals without Title X providers.” The Title X rule is scheduled to go into effect on May 3, 2019, and more lawsuits against the rule are pending in other courts.
 
Judge Bastian devoted most of his analysis to the likely effects of the final rule, but his order granting the injunction also mentions the arbitrary-or-capricious test. Under the APA, courts reviewing agency decisions must rule against actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The people challenging the rule argued that it was “arbitrary and capricious because it reverses long-standing positions of the Department without proper consideration of sound medical opinions and the economic and non-economic consequences.”
 
Additional reading:


Federal judge to block Trump administration restrictions on abortion access

U.S. District Judge Michael McShane said he would issue a preliminary injunction to block a new Trump administration rule aimed at keeping Title X fund recipients from engaging in abortion-related activities, according to Maxine Bernstein at The Oregonian. Bernstein also reported that McShane called the Department of Health and Human Services (HHS) rule a “ham-fisted approach to public health policy” in remarks following oral argument on April 23. The rule is scheduled to go into effect on May 3, 2019, and more lawsuits against the rule are pending in other courts. McShane “isn’t certain how many jurisdictions the injunction will cover,” according to the Portland Mercury.
 
In this case, attorneys general from 20 states and the District of Columbia joined together to sue the Trump administration. The final rule issued by HHS prohibits using Title X funds to perform, promote, or refer for abortion as a family planning method. The rule also requires clear financial and physical separation for clinics conducting Title X and non-Title X activities.
 
Supporters say the new rule updates Title X regulations to bring them in line with congressional intent not to support abortion with those funds. Opponents of the new Title X rule call it a gag rule because it prohibits fund recipients from referring patients for abortion services.
 
The U.S. Supreme Court upheld a similar rule in the 1991 case Rust v. Sullivan, but the rule never went into effect once Bill Clinton became president. In response to the federal government’s attorney citing Rust, Judge McShane asked whether the rule would bring about good health outcomes, according to Bernstein’s reporting.
 
A final rule, in the context of administrative rulemaking, is a federal administrative regulation that went through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date. The published final rule marks the last stage in the rulemaking process and includes information about the rationale for the regulation as well as any necessary responses to public comments.
 


Federal Register weekly update; 2019 weekly page average continues to climb

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of April 15 to April 19, the number of pages in the Federal Register increased by 1,518 pages, bringing the year-to-date total to 16,600 pages. The Federal Register featured a total of 590 documents, including 487 notices, four presidential documents, 33 proposed rules, and 66 final rules.
 
One final rule and two proposed rules were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,432 pages. As of April 19, the 2019 total trailed the 2018 total by 1,014 pages.
 
The Trump administration has added an average of 1,038 pages to the Federal Register each week in 2019 as of April 19. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Idaho governor targets regulatory costs with two executive orders

Idaho Governor Brad Little signed two executive orders in January 2019 aimed at reducing state regulations on businesses and individuals in Idaho. He said that the orders would “help simplify Idaho state government and make it more accountable to citizens.”
 
The first executive order, the Licensing Freedom Act of 2019 (LFA), makes changes to the way Idaho implements and maintains occupational licenses. The LFA establishes a sunset rule that requires a regular gubernatorial review of every licensure requirement to determine whether those requirements still serve the public interest. The LFA also creates a list of sunrise factors that the governor and executive departments must consider with the legislature in order to impose new regulations on businesses, professions, or occupations.
 
The second executive order, called the Red Tape Reduction Act (RTRA), requires the state Division of Financial Management to submit annual reports detailing efforts to eliminate regulations and to streamline state government. In addition, the RTRA changes the procedures for proposing new rules through the 2021 fiscal year. First, state agencies must submit a statement identifying the impact that a new rule would have on individuals and small businesses. Second, agencies must name at least two existing rules to repeal or simplify or they must give reasons why existing rules cannot be simplified or removed. This requirement is similar to President Donald Trump’s Executive Order 13771, which requires federal agencies to eliminate two old regulations for every new regulation they issue.
 


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